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“The Duel” – An Employer’s Duty to Provide a Safe Work Environment

August 30, 2019 | Daniel A. Thompson

In the fifth season of The Office (US), Andy Bernard learns that his fiancée, Angela, is having an affair with Dwight Schrute. The love triangle comes to an end when the two men challenge each other to a physical fight to win her affections.

California’s Occupational Safety and Health Act of 1973 (“Cal-OSHA”) requires that employers provide “safe and healthful working conditions for all California working men and women.” (Labor Code § 6300). This is generally understood to mean the prevention of industrial accidents.

Invasion of Privacy in the Workplace

July 3, 2019 | Daniel A. Thompson

In 1973, the NCAA enacted a rule prohibiting student athlete drug use. Unfortunately, there was no standardized drug test to enforce the rule. At the 1983 Pan American Games in Caracas, Venezuela, several college student athletes tested positive for prohibited drugs, causing great embarrassment for the NCAA and raising questions about competitive fairness. How was the alleged “drug ban” being enforced?

The NCAA needed a solution, which, unfortunately, would invade the privacy of student athletes. In 1986, the NCAA adopted a mandatory drug testing program. Among other things, the drug testing policy required student athletes (1) to disclose medications they may be using and other information about their physical and medical conditions; (2) to urinate in the presence of a monitor; and (3) to provide a urine sample that reveals chemical and other substances in their bodies.

In 1990, a linebacker on the Stanford football team and the co-captain of the Stanford women’s soccer team sued the NCAA, alleging that the drug testing requirements violated their right to privacy. In the landmark case of Hill v. Nat’l Collegiate Athletic Assn. (1994) 7 Cal. 4th 1, 38, the California Supreme Court held that Article I, Section 1 of the California Constitution, which recognizes certain “inalienable rights” including the right of privacy, creates a private right of action against private parties.

Record-keeping Responsibilities for Employers

June 4, 2019 | Daniel A. Thompson

When Thomas Jefferson commissioned an expedition to explore the western frontier in 1803, he called upon two men who, among other things, were valiant record-keepers. Meriwether Lewis, a secretary, and William Clark, a cartographer, spent three years exploring and documenting an unknown territory. Some of the most important things to come from the Lewis and Clark Expedition were their personal journals, which contained invaluable information used by those who followed their trail westward.

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The value of record-keeping cannot be overstated. Advanced civilizations require written language, arts, sciences and government – which all begin with record-keeping. The same can be said about business. While all businesses keep records, there is a significant difference between a cave painting and the Great Library of Alexandria. Unfortunately, some business owners remaining in the stone age of record-keeping, which can create significant liability.

Both Federal and State law require employers to create and maintain employment records. This includes payroll records, employee’s name, address, occupation, hours worked each day and week, wages paid and date of payment, amounts earned as straight-time pay and overtime, and deductions. These records must be maintained for three years. [Lab.C. §§ 226(a), 1174(d), 29 CFR § 516.5]. Other records, such as time and earning cards and work schedules must be kept for two years. [29 CFR § 516.6].

“Ban the Box” – Where Criminal and Employment Law Meet

May 3, 2019 | Daniel A. Thompson

In the classic novel The Scarlet Letter, author Nathanial Hawthorne depicts the story of a woman who was forced to wear a scarlet letter ‘A’ on her dress so the townspeople could publicly shame her for adultery. The major theme of The Scarlet Letter is the suffering of individuals from social stigmatizing – a vice that has only increased since the novel’s publication in 1850.

In recent years, the “Ban the Box” movement has sought to eliminate similar stigmatisms about convicted criminals who, after paying their debt to society, find it difficult to secure employment due to prejudice. The goal of this movement is to decrease discrimination against applicants who may have a criminal history. In 2015, President Obama “banned the box” on applications for federal government jobs. Currently, eleven states have mandated the removal of conviction history questions from job applications for private employers. In 2017, California passed multiple statutes that prohibit employers from considering expunged criminal records in hiring decisions.

Davis & Wojcik APLC recently settled an employment case against a major automotive company that withdrew its offer to hire a prospective employee after the corporation unlawfully investigated the employee’s expunged criminal record. The criminal conviction occurred more than ten years prior and was not the type of crime that affected the position.

Understanding California Bonding Leave

March 28, 2019 | Daniel A. Thompson

The Family and Medical Leave Act (FMLA) is a federal law that provides job security to an employee who is absent from work because of the employee’s own serious health condition or to care for specified family members with serious health conditions, as well as for the birth of a child and to care for a newborn child, or because of the placement for adoption or foster care of a child with the employee. 29 USC § 2601 et seq.

The California Family Rights Act (CFRA) is the California equivalent of FMLA and provides similar protections. Gov.C. § 12900 et seq. Under FMLA and CFRA, both the mother and father are entitled to leave to bond with the newborn even if the newborn does not have a serious health condition. See 29 CFR § 825.120(a)(2).

The New Parent Leave Act (NPLA), which became effective on January 1, 2018, applies to smaller employers with 20-49 employees. (FMLA and CFRA cover 50 or more employees). Gov. C. § 12945.6. The NPLA requires employers with at least 20 employees to provide up to 12 workweeks of parental leave for eligible employees to bond with a new child within one year of the child’s birth, adoption or foster care placement.

Let’s Talk Lunch: Understanding California’s Meal Period Laws

December 20, 2018 | Daniel A. Thompson

Here are some fun facts about lunch. The origin of the word lunch (luncheon) comes from the anglo-saxon word, “nuncheon,” meaning “noon drink.” In Spanish, the word for lunch is almuerzo. In German, lunch is mittagessen. Hobbits call it Elevenses. In California, however, lunch is called… mandatory.

The Basics

Under California law, employers must provide employees with no less than a thirty-minute meal period for shifts exceeding more than five hours. A second meal period is required if an employee works more than ten hours per day. Labor Code § 512. An employer is not required to police meal periods. However, an employer must do more than simply make meal periods available. The employer must relieve the employees of all duty, relinquish control over their activities and must not impede or discourage employees from taking a meal period.